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Upcoming Supreme Court Hearing: Harpur Trust v Brazel

Published: 02 November 2021
Time to read: 2 mins

This case concerns the procedure for calculating holiday pay for workers in permanent employment who do not carry out work for the whole year.

Ms Brazel was a visiting music teacher who was employed on a permanent zero-hours contract and only carried out work during the school term.  Under the Working Time Regulations 1998, workers are permitted a minimum of 5.6 weeks’ paid annual leave. Where a worker’s hours fluctuate from week to week, the Employment Rights Act 1996 provides that a week’s pay for the purposes of this calculation should be calculated on an average of the employee’s earnings in the 12 weeks prior to the calculation.

This case arises out of an attempt by Ms Brazel’s employer to apply an implied principle of pro-rating to these rules to reflect the fact that Ms Brazel did not work throughout the whole year. The employer followed guidance from ACAS which states that 5.6 weeks is equivalent to 12.07% of hours worked throughout the year, and as such, holiday entitlement should be capped at 12.07% of annualised hours.   Ms Brazel’s average weekly hours were significantly lower if calculated on an annual basis rather than the 12-week average approach.

Decision

The Court of Session found in favour of Ms Brazel, stating that the procedure set out in the Working Time Rules and Employment Rights Act 1996 did not provide any mechanism for pro-rating entitlement in this manner. They accepted that this may produce some anomalies in which part-year workers obtained a much higher proportion of holidays than full-year workers but did not consider these sufficient enough to require the general application of a pro-rating principle.

This case is due to be heard by the Supreme Court on 9 November.

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